The Complainant is Carrefour, France, represented by Dreyfus & associés, France.
The Respondent is Contact Privacy Inc. Customer 0153822170, Canada / Milen Radumilo, Romania. 2. The Domain Name and Registrar
The disputed domain name (the “Disputed Domain Name”) is registered with Tucows Inc. (the “Registrar”). 3. Procedural History
The Complaint was filed with the WIPO Arbitration and Mediation Center (the “Center”) on April 4, 2019. On April 4, 2019, the Center transmitted by email to the Registrar a request for registrar verification in connection with the Disputed Domain Name. On April 5, 2019, the Registrar transmitted by email to the Center its verification response disclosing registrant and contact information for the Disputed Domain Name which differed from the named Respondent and contact information in the Complaint. The Center sent an email communication to the Complainant on the same date providing the registrant and contact information disclosed by the Registrar, and inviting the Complainant to submit an amendment to the Complaint. The Complainant filed an amended Complaint on April 10, 2019.
The Center verified that the Complaint together with the amended Complaint satisfied the formal requirements of the Uniform Domain Name Dispute Resolution Policy (the “Policy” or “UDRP”), the Rules for Uniform Domain Name Dispute Resolution Policy (the “Rules”), and the WIPO Supplemental Rules for Uniform Domain Name Dispute Resolution Policy (the “Supplemental Rules”).
In accordance with the Rules, paragraphs 2 and 4, the Center formally notified the Respondent of the Complaint, and the proceedings commenced on April 25, 2019. In accordance with the Rules, paragraph 5, the due date for Response was May 15, 2019. The Respondent did not submit any response. Accordingly, the Center notified the Respondent’s default on May 16, 2019.
The Center appointed Mariya Koval as the sole panelist in this matter on May 16, 2019. The Panel finds that it was properly constituted. The Panel has submitted the Statement of Acceptance and Declaration of Impartiality and Independence, as required by the Center to ensure compliance with the Rules, paragraph 7. 4. Factual Background
The Complainant, being founded in 1958, is a French multinational retailer, headquartered in France. The Complainant was the first in Europe to open a hypermarket in 1963. At present the Complainant is one of the largest hypermarket chains in the world, it operates on three major markets: Europe, Latin America and Asia, having 12,300 stores and e-commerce websites (1.3 million visitors per day) in more than thirty countries and regions in the world. The Complainant generates more than 53 percent of its sales outside France.
The Complainant launched a special social program named “Carrefour Life” in some countries like Spain for its employees, collaborators, retirees and family members. The program is based on two axes: social activities and commercial advantages and aims to encourage moments of leisure and optimism outside the workplace.
The Complainant is the owner of many CARREFOUR Trademark registrations (the “CARREFOUR Trademark”) around the globe. There are some of them:
Trademark
Country/Register
Registration No.
Registration Date
International Class
CARREFOUR
France
1487274
September 2, 1988
35, 36, 37, 38, 39, 40, 41,42, 43, 44, 45
CARREFOUR
European Union
005178371
August 30, 2007
9, 35, 38
CARREFOUR
European Union
008779498
July 13, 2010
35
The Complainant operates, among others, domain names with use of its CARREFOUR Trademark for sale and promotion its goods and services:
- registered on October 25, 1995;
- registered on June 23, 2005.
The Disputed Domain Name was registered on January 31, 2019. Before filing the Complaint the Disputed Domain Name resolved to a parking page with several commercial links, and an email server was also configured. According to the evidence presented by the Complainant (Annex 1 to the Complaint) on the date of filing the Complainant and on the date of this decision the Disputed Domain Name resolves to a parking page. 5. Parties’ Contentions A. Complainant
The Complainant contends that the Disputed Domain Name is confusingly similar to the Complainant’s CARREFOUR Trademark in view of it reproduces the Complainant’s Trademark in its entirety combined with the term “life” which refers to the Complainant’s social program for its employees named “Carrefour Life”. The Complainant also notes that Internet users might have surely been misled thinking that it is, in some way, associated with the Complainant and thus may heighten the risk of confusion and that the Complainant’s employees have surely been misled thinking it was the Complainant’s official website.
The Complainant further contends that the Respondent has no right or legitimate interest in respect of the Disputed Domain Name since he is not affiliated with the Complainant in any way nor has he been authorized or licensed by the Complainant to use and register its CARREFOUR Trademark or to seek registration of any domain name incorporating the aforesaid Trademark; the Respondent has no prior rights or legitimate interests in the Disputed Domain Name.
The Complainant also alleges that the Respondent is not commonly known by the Disputed Domain Name or the name “Carrefour”. The Respondent cannot assert that, before any notice of this dispute, he was using, or had made demonstrable preparations to use, the Disputed Domain Name or a name corresponding to the Disputed Domain Name, in connection with a bona fide offering of goods or services.
The Complainant notices that to its best of knowledge, the Disputed Domain Name has never been used for any legitimate purpose: it indeed resolved to a parking page with several commercial links and reproduces the CARREFOUR Trademark on the said page and it resolves to random websites and, among others, to a ransomware website indicating that the computer of the user is infected and some files are automatically downloaded.
The Complainant further asserts that the Disputed Domain Name was registered and being used in bad faith in view of the following. It is implausible that the Respondent was unaware of the Complainant when he registered the Disputed Domain Name in view of the Complainant’s CARREFOUR Trademark enjoys considerable goodwill and renown throughout the world, the reproduction of the Complainant’s Trademark and the Complainant’s social program “Carrefour Life” strongly suggests that the Respondent had the Complainant’s Trademark and activities in mind, when registered the Disputed Domain Name and that the Complainant’s Trademark rights significantly predate the registration date of the Disputed Domain Name.
The Complainant also contends that the use of the Disputed Domain Name demonstrates the Respondent’s intention to abusively benefit from the Complainant’s reputation and particularly from its CARREFOUR Trademark and from its social program for commercial gains, to phish personal data from Internet users or to install malware on users’ computer, that cannot be considered as a use in good faith. B. Respondent
The Respondent did not reply to the Complainant’s contentions. 6. Discussion and Findings
Paragraph 4(a) of the Policy sets forth the following three elements which have to be met for the Panel by the Complainant:
(i) the Disputed Domain Name is identical or confusingly similar to a trademark or service mark in which the Complainant has rights; and
(ii) the Respondent has no rights or legitimate interests in respect of the Disputed Domain Name; and
(iii) the Disputed Domain Name has been registered and is being used in bad faith.
The Complainant must prove in this administrative proceeding that each of the aforesaid three elements is present so as to have the Disputed Domain Name transferred to it, according to paragraph 4(a) of the Policy. A. Identical or Confusingly Similar
The Complainant has established that it has rights in the CARREFOUR Trademark in view of various trademark registrations throughout the world and long use. Moreover, the Complainant’s CARREFOUR Trademark has been acknowledged as well-known by many previous UDRP panels, see. e.g. Carrefour v. Jean-Claude Bot / Albert Pierre,WIPO Case No. D2017-0969; Carrefour v. Milen Radumilo / United Privacy Corp,WIPO Case No. D2015-1851; Carrefour v. Karin Krueger,WIPO Case No. D2013-2002.
The Panel finds that the Disputed Domain Name is confusingly similar to the Complainant’s well-known CARREFOUR Trademark. The Disputed Domain Name reproduces the CARREFOUR Trademark in its entirety with addition of the term “life”. According to section 1.7 of the WIPO Overview of WIPO Panel Views on Selected UDRP Questions, Third Edition (“WIPO Overview 3.0”) while each case is judged on its own merits, in cases where a domain name incorporates the entirety of a trademark, or where at least a dominant feature of the relevant mark is recognizable in the domain name, the domain name will normally be considered confusingly similar to that mark for purposes of UDRP standing. Addition of the term “life” to the Complainant’s Trademark does not prevent a finding of confusing similarity between the Disputed Domain Name and the Complainant’s Trademark in view of the Complainant’s Trademark is clearly recognizable in the Disputed Domain Name. On the contrary, inclusion of the term “life” in the Disputed Domain Name affirms a confusing similarity in view of the Complainant has its special social program for its employees named “Carrefour Life”. The Internet users, accessing the Disputed Domain Name, would most likely consider that it is the main Complainant’s website for its social program.
Finding of confusing similarity between the Disputed Domain Name and the Complainant’s Trademark also conforms with the provisions of section 1.8 of the WIPO Overview 3.0, according to which where the relevant trademark is recognizable within the disputed domain name, the addition of other terms (whether descriptive, geographical, pejorative, meaningless, or otherwise) would not prevent a finding of confusing similarity under the first element.
The Panel finds that the Disputed Domain Name is confusingly similar to the Complainant’s Trademark and that the Complainant has established the first element under paragraph 4(a)(i) of the Policy. B. Rights or Legitimate Interests
Regarding the Complainant’s contentions, the Panel finds that the Complainant has made out a prima facie case in respect of the Respondent’s lack of rights or legitimate interests in the Disputed Domain Name.
The Respondent is not affiliated with the Complainant in any way. He has not been authorized or licensed by the Complainant to register or use the Disputed Domain Name or to seek the registration of any domain name incorporating the CARREFOUR Trademark or a mark similar to the Complainant’s Trademark. There is no evidence that the Respondent, being a natural person, is commonly known by the Disputed Domain Name or any similar name. The Respondent does not have any relationship or association with the Complainant.
The Panel reviewed the evidence, presented by the Complainant (Annex 1 to the Complaint) and the content of the website to which the Disputed Domain Name resolves. At the date of this decision the Respondent is using the Disputed Domain Name to operate a parking page with several commercial links related to the Complainant. Such use of the Disputed Domain Name cannot be considered as bona fide offering of goods or services or fair use. Moreover, there is no other evidence that the Respondent has used or made demonstrable preparations to use the Disputed Domain Name in connection with a legitimate noncommercial use.
In light of the above, the Panel concludes that the Disputed Domain Name has been registered and is being used by the Respondent with the sole intention of obtaining the benefit from the Complainant’s reputation, which is a use from which rights or legitimate interests cannot arise in this case.
Further, taking into consideration all circumstances of this case, namely the Complainant’s goodwill and notoriety and that the CARREFOUR Trademark is a highly distinctive mark and is indeed well-known, the Panel considers that it is almost impossible that the Respondent could not be unaware of the Complainant and its social program. The Panel therefore finds that it is more likely that the Respondent registered the Disputed Domain Name with the sole intention of commercial gain by attracting the consumers to its website.
Accordingly, the Panel finds that the Respondent indeed has no rights or legitimate interests in the Disputed Domain Name and accordingly, the Complainant has satisfied the requirements of paragraph 4(a)(ii) of the Policy. C. Registered and Used in Bad Faith
For the purposes of paragraph 4(a)(iii), the following circumstances, in particular but without limitation, if found by the Panel to be present, shall be evidence of the registration and use of a domain name in bad faith:
(i) circumstances indicating that the Respondent has registered or has acquired the Disputed Domain Name primarily for the purpose of selling, renting, or otherwise transferring the Disputed Domain Name registration to the Complainant who is the owners of the trademark or service mark or to a competitor of the Complainant, for valuable consideration in excess of its documented out-of-pocket costs directly related to the Disputed Domain Name; or
(ii) the Respondent has registered the Disputed Domain Name in order to prevent the owner of the trademark or service mark from reflecting the mark in a corresponding domain names, provided that the Respondent has engaged in a pattern of such conduct; or
(iii) the Respondent has registered the Disputed Domain Name primarily for the purpose of disrupting the business of a competitor; or
(iv) by using the Disputed Domain Name, the Respondent has intentionally attempted to attract, for commercial gain, Internet users to its website or other online location, by creating a likelihood of confusion with the Complainant’s mark as to the source, sponsorship, affiliation, or endorsement of the Respondent’s website or location or of a product or service on the Respondent’s website or location. (Policy, paragraph 4(b)).
The Disputed Domain Name incorporates the Complainant’s Trademark in its entirety and reproduces the name of the Complainant’s social program that creates a strong likelihood of confusion with the Complainant’s Trademark as to the source, sponsorship, affiliation or endorsement of the Disputed Domain Name.
According to section 3.1.4 of the WIPO Overview 3.0 panels have consistently found that the mere registration of a domain name that is identical or confusingly similar (particularly domain names comprising typos or incorporating the mark plus a descriptive term) to a famous or widely-known trademark by an unaffiliated entity can by itself create a presumption of bad faith. The Panel is of opinion that it is clear that the Respondent, having registered and used the Disputed Domain Name, which is confusingly similar to the well-known Complainant’s Trademark, primarily intended to disrupt the Complainant’s business. In view of the absence of any evidence to the contrary and that the Respondent did not file any statement, the Panel concludes the Respondent has registered and is being used the Disputed Domain Name in bad faith.
Also, as mentioned above, at the date of this decision the Respondent is using the Disputed Domain Name to operate a parking page with several commercial links. Therefore, the Panel believes that such way of use of the Disputed Domain Name evidences that the Respondent’s sole intention was to get commercial benefit from the Disputed Domain Name either by selling it to the Complainant, or by generating pay-per-click revenues, see e.g., Advance Magazine Publishers Inc. v. Marcellod Russo,WIPO Case No. D2001-1049.
Furthermore, the fact that the Respondent was involved in a number of UDRP proceedings involving domain names including the CARREFOUR Trademark constitutes a strong evidence that the Respondent appears to be a cybersquatter and consequently the Respondent knew very well about the Complainant and its well-known Trademark. Accordingly, it is more than likely that the Respondent has registered the Disputed Domain Name with the Complainant’s Trademark in mind and to primarily intend to disrupt the Complainant’s business.
According to section 3.6. of the WIPO Overview 3.0 there are recognized legitimate uses of privacy and proxy registration services; the circumstances in which such services are used, including whether the respondent is operating a commercial and trademark-abusive website, can however impact a panel’s assessment of bad faith. The Panel considers that, taking into account all circumstances of this case and the fact that the Respondent is a cybersquatter, in this case the Panel considers that the Respondent’s use of privacy service constitutes an inference of bad faith registration and use of the Disputed Domain Name.
Finally, the Respondent did not reply to the Complainant’s contentions and did not take any actions for justification of his registration and use of the Disputed Domain Name.
Accordingly, the Panel finds that the Respondent has registered and is using the Disputed Domain Name in bad faith and that the Complainant has met the requirements of paragraph 4(a)(iii) of the Policy. 7. Decision
For the foregoing reasons, in accordance with paragraphs 4(i) of the Policy and 15 of the Rules, the Panel orders that the Disputed Domain Name be transferred to the Complainant.
Mariya Koval
Sole Panelist
Date: May 30, 2019
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